How Dianne Feinstein Misled Congress About How 'Useful' NSA Spying Authorities Were In Stopping Plots

from the say-what-now? dept

We've been following the case of Adel Daoud for a little while now. He's one of the many people arrested for "terrorism" in one of the FBI's dozens of "home grown plots" in which they create their very own terrorist plot, dupe someone into "joining" and then arrest (and then relish in the headlines about stopping a terrorist "plot" that was never a real plot in the first place). In Daoud's case, the made up "plot" involved blowing up a Chicago bar. But the Daoud case got a lot more attention, because in the big "debate" over the renewal of the FISA Amendments Act (FAA) in late 2012, Senator Dianne Feinstein directly described the Daoud "plot" as an example of why the FAA and Section 702 were necessary. Here's what she said:

There is a view by some that this country no longer needs to fear
attack. I don't share that view, and I have asked the intelligence
committee staff to compile arrests that have been made in the last 4
years in America on terrorist plots that have been stopped. There are
100 arrests that have been made between 2009 and 2012. There have been
16 individuals arrested just this year alone. Let me quickly review
some of these plots. Some of these may arrests come about as a result
of this program. Again, if Members want to see the specific cases where
FISA Amendments Act authorities were used, they can go and look at the
classified background of these cases.

First, in November, 1 month ago, two arrests for conspiracy to
provide material support to terrorists and use a weapon of mass
destruction. That was Raees Alam Qazi and Sheheryar Alam Qazi. They
were arrested by the FBI in Fort Lauderdale, FL. The next case is
another conspiracy to provide material support. Arrested were Ralph
Deleon, Miguel Alejandro Santana Vidriales and Arifeen David Gojali.
These three men were planning to travel to Afghanistan to attend
terrorist training and commit violent jihad; third, was a plot to bomb
the New York Federal Reserve Bank; fourth, a plot to bomb a downtown
Chicago bar; fifth, a conspiracy to provide material support to the
Islamic Jihad Union; sixth, a plot to carry out a suicide bomb attack
against the U.S. Capitol in February of 2012; seventh, a plot to bomb
locations in Tampa, FL; eighth, a plot to bomb New York City targets
and troops returning from combat overseas; ninth, a plot to assassinate
the Saudi Ambassador to the United States; and it goes on and on and
on.

So I believe the FISA Amendments Act is important and these cases
show the program has worked

That caught the attention of a bunch of folks, because nowhere in Daoud's case had the government suggested it had obtained or used evidence via the FAA -- leading to serious questions about whether the government had been withholding evidence or if that evidence had been unconstitutionally obtained. Unfortunately, Daoud's attempt to get access to whatever evidence has been collected on him has been shut down by the courts. Judge Richard Posner issued a "supplemental classified opinion" to go with the original opinion we wrote about, but parts of that opinion have been released as well. Very large portions of it, however, remain totally redacted. What remains more or less says that the government did everything in a proper way and there were no constitutional problems. It also implies there was a ton of evidence pointing to Daoud's activities.

However, what caught my attention in the unredacted snippets of the ruling is Judge Posner basically claiming that Feinstein's claims about Daoud's case involving the FAA didn't actually mean the FAA was used:

The defendant's challenge relies primarily on a December 27, 2012 Senate floor speech by Senator Feinstein, who
said: "There have been 16 individuals arrest[ed] just this year alone. Let me quickly just review what these plots were. And some of them come right from this program [meaning the FAA]. The counter-terrorism come[s] -- and the information came right from this program. And again, if members want to see that, they can go and look in a classified
manner.... Fourth, a plot to bomb a downtown Chicago bar...." (emphasis added) (visited July 11, 2014).

The referenced "plot" is obviously the defendant's, and
because the Senator used the examples to support the reauthorization of the FAA, the defendant not unreasonably interpreted her remarks to mean that the FAA had been used in his case. But an equally reasonable interpretation of the
Senator's remarks is that she was merely saying that the defendant was one of the 16 individuals who had been arrested
in 2012, same of whom had been arrested on the basis of such
information. The Senate's Legal Counsel confirmed in a letter to defense counsel that "Senator Feinstein did not state,
and did not mean to state, that FAA surveillance was used in
any or all of the nine cases she enumerated, including [the
defendant's] case, in which terrorist plots had been stopped....
Rather, her purpose in reviewing several recent terrorism
arrests was to refute the "view by some that this country no
longer needs to fear attack.'"

Reading the original quote, Posner is correct that before Feinstein lists the examples, she adds the caveat that "some" of them "may" have used the FAA. But she also concludes it by insisting that these prove that the FAA worked. If anything, this ruling highlights just what a disingenuous and deceiving speech Feinstein gave during the debate over the FAA. Any reasonable person listening to that speech would hear that and believe that this program (the FAA and its 702 surveillance program) was the key to breaking up all of those "plots." After all, the entire debate was about renewing the FAA.

And yet, now it's quite clear that Feinstein was just listing out any and all "plots" (and even that is not really accurate since so many, including Daoud, were plots created by the FBI itself, meaning they never needed the FAA anyway), and falsely implying the FAA was necessary to break them up. Feinstein's scare-mongering over what would happen without a renewal of the FAA was a big part of why it passed, and as this ruling more or less confirms, she completely mislead others in Congress and the American public about it.

Re:

Two types of people in Washington

I heard an interview a while back from someone who had clearance and was regularly briefed by our intelligence agencies. And basically he said that there are two types of people in Washington. Those that know what the terrorists are up to based on what our intelligence agencies know and those that don't. And he inferred that there are a lot of people plotting against us and that people who don't get these briefings just don't understand the reality of the situation.

The problem is that it's the intelligence agencies providing that information and the quality of it is always going to be suspect. But I think it scares members of congress into believing that we need to spy on pretty much everyone because of what the intelligence agencies tell them.

So, why do Congress folks support the Intelligence Community?

Senators in particular, but really, all Representatives and Senators, don't like to be mislead by "bureaucrats". Yet we see DNI Clapper, Keith Alexander, John Brennan, etc demonstrably lying to the Senate at least.

A few Senators are mildly upset about this, Udall, Wyden and Paul, maybe. The entire House is outraged about (in comparison) mildly misleading testimony from IRS officials.

So, what's the deal? Is it just that cool having a bunch of compartmented program's info to gawk at? Does the "intelligence community" just "wow" the committee members with insider information? Or is there some kind of Jane Harmon/Alberto Gonzalez/AIPAC deal going on here? Yes, that's a veiled suggestion that the "intelligence community" blackmails elected representatives.

There's still something smelly here

I don't see Posner saying the FAA wasn't used. Just that the defendant's evidence (i.e. Feinstein's words) don't prove that the FAA was used. (I would hope that Posner would be in a position to flat out ask the prosecution if the FAA was used, and would ensure that they revealed that. But I'm not sure). This quote from page 2:

The FBI's investigation of the defendant was triggered ...[redacted]...

makes me think that something is still not right with the disclosures. I would think that the rest of that sentence would be very important to the defense of the case.

Surveillance of children

Posner points out an interesting point - FISA has no age restrictions. It's concerning that the government is spying on children - especially in light of the explicit nature of some of the emails & images the government reportedly have access to.

Let's Recap

2. The extent of the FAA/FISA/etc systems indicate that secret courts have found all of this legal.

3. EFF/ACLU/Amnesty file suits challenging the constitutionality of such programs, including the violation of the Fourth Amendment.

4. Amnesty Case makes it to Appellate Court, where Solicitor General says it isn't a violation, and suggests that if evidence obtained via FISA/etc. is used against that defendant, the defendant will have access to it in court. The Supreme Court took this as true and ruled that Amnesty had no standing because it couldn't prove it was spied on.

5. Feinstein makes that awesome speech, and uses specific examples of how the FISA/etc. evidence helped stop various plots, including the Chicago Bar bombing.

6. Defendant and his counsel in Chicago Bar Bombing case are interested, because per #4, they were never given any information derived from FISA/FAA, suggesting withheld evidence. Lawsuits are had.

7. Judge Posner considers the case, and finds everything is hunky dory, and everything was legal, and the Defendant does not get access to the evidence obtained via FISA/FAA.

Therefore:

8. Since Defendant cannot see evidence used against him, he does not have standing to challenge the constitutionality of the seizure or search.

Even though the Solicitor General told the Supreme Court that if FISA/etc. is used to gather evidence in a criminal case, the Defendant and his counsel would have access to it. The judges relied on this in denying standing.

Circular reasoning is circular. There is no way to break the loop and see what evidence was used against him.

Re: Sen Feinstein

Re: Let's Recap

I'm not sure if I understand it. But it sure seems apparent from Posner's opinion that FISA was used. The opinion makes it sound like there are extra disclosure requirements required for FAA (but less need for probable cause). But it's not clear if FAA was used. I don't understand the distinction between FISA and FAA. I thought FAA was an ammendment to FISA, so any rules in FAA would apply to FISA going forward. But what do I know.

Ok, I'm actually glad she was misleading, because the concept that the government would have to use the NSA's dragnet spy programs to find out information about a plot that was created created by the government in the first place means a whole new level of stupidity would be going on.

7. Posner denies his request, saying it was all legal and that he is not entitled to view the information obtained from FISA/FAA/702/etc, and cannot prove it was used in his case. Therefore, he has no standing to challenge constitutionality.

Therefore: To challenge constitutionality, you must have standing. To have standing, you must have evidence that you were spied on. To have evidence you were spied on, you must be shown it by government in your trial. When the government doesn't show it to you at your trial, you cannot prove you were spied on, and thus have no standing to challenge the constitutionality of the search/seizure.

Re: Senator FrakenFeinstein

Re: Two types of people in Washington

And you know what, that might have sounded like a reasonable explanation, before those same intelligence agencies got caught in lie, after lie, after lie, defending their actions and precious spying programs.

If they lie that much on the minor stuff, what makes you think they wouldn't lie about how 'terrorists are around every corner, so you need to give us free reign and lots of money to stop them!' so they can continue to act unchecked and justify their constant demands for more money and power?

Re:

Yes it is SOP for politicians to lie and mislead, but that doesn't mean it should be considered any less serious when they do it, especially when the lie is used to justify and defend a program that otherwise have been killed off.

"The FISA applications in this case also revealed [the Constitution of the United States is being used as toilet paper by the applying agencies,] the secrecy of which is unquestionably important to maintain."